No Settlement Doesn’t Mean No Benefit

By Laura Melton Tucker, June 17th, 2009

At the end of each small claims mediation, but before our handshake across the table, I give an evaluation form to each participant to fill out. While they’re doing this, I write up the mediation agreement or dismissal. On this day, however, I sat doing nothing. There had been no agreement. Later, reviewing the evaluations, I was dismayed that one of the participants gave our afternoon a low score. He wouldn’t recommend mediation to a friend, according to the box he checked, and in the open comments section he scrawled, “Too much wasted time with no result.” The other participant gave the session high marks and wrote a favorable comment. Why did these two participants have such different experiences? Here’s the rest of the story.

I begin all small claims mediations the same way. After we’ve settled into our seats at the table and made introductions, I talk for less than a minute about the mediation process. I always stress confidentiality, informality, and encourage the participants to speak freely to one another. I also invite them to make phone calls or request a visit with the magistrate if they need more information. I want them to feel empowered by the information that they share at the table or get from an outside source. At this point I usually shift backward in my chair to signal that the real talk can now begin… I am getting out of their way. Despite this gesture, there is usually an initial period when the parties talk to me rather than one another, as if I were acting as a stand-in judge.

At this mediation the plaintiff, a business owner, had filed a claim to recover losses from a bad deal. The defendant was represented by an attorney. The specifics of the case are confidential, but both participants were polite and attentive; both were thoughtful listeners and questioners.

After almost an hour of information sharing between the parties, the attorney began to deliver a formal summary of his case. Didactic points were layered for the plaintiff like an algebra problem: “If this then this, which can only mean this.” There was table thumping and a slightly agitated tone. Once the attorney shifted to this tactic, I interrupted. I refocused the participants on their options: a compromise, a dismissal or a trial before the judge. The mediation ended quickly at this point and we returned to court.

Can you guess which participant gave the session a low score? I must confess that I wouldn’t have guessed either one. I thought the afternoon was a success. Both shared information and evidence, some of which they’d not known or seen prior to sitting down together, and the conversation had been self-directed and focused. The attorney, however, rated the mediation a waste of time.

Most likely the attorney didn’t value the time together because it failed to deliver the outcome he wanted. Perhaps, too, he felt his client would resent the extra hour of billed time. But, here’s the takeaway: When mediations don’t lead to an agreement, the time together can still be useful for sorting out misunderstandings, or, in this case, getting clear on the facts as seen from the other side’s perspective. And, though there was no settlement or dismissal, surely the hour together helped the participants improve their presentations before the judge.

2 Responses

  • In transformative mediation, the focus in the opening statement is decision-making by the parties on both process and substance: they decide what kind of conversation they need to have and how they will have their conversation. In the conversation, they get to decide on everything that comes up. Those decisions may lead to settlement or not. A transformative mediatior always emphasizes that outcomes other than settlement can have great value for the parties in terms of better understandings of oneself and the other person, and greater clarity around options and resources that are available. The point is that the mediation is not settlement-driven but rather party-driven. There is value in the fact that they have made their own decisions even when they can’t agree. And this value is greater than a settlement that has been identified by the mediator as an option for their consideration.

  • Thank you! I like your summation so much I propose IT be the “takeaway!”

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